Judges: Per Curiam
Filed: Aug. 16, 2016
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 6, 2016 Decided August 16, 2016 Before RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3314 POLLY A. REED, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Indiana, Fort Wayne Division. v. No. 1:14-CV-080 JD CAROLYN W. COLV
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Argued July 6, 2016 Decided August 16, 2016 Before RICHARD A. POSNER, Circuit Judge DIANE S. SYKES, Circuit Judge DAVID F. HAMILTON, Circuit Judge No. 15-3314 POLLY A. REED, Appeal from the United States District Plaintiff-Appellant, Court for the Northern District of Indiana, Fort Wayne Division. v. No. 1:14-CV-080 JD CAROLYN W. COLVI..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued July 6, 2016
Decided August 16, 2016
Before
RICHARD A. POSNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 15‐3314
POLLY A. REED, Appeal from the United States District
Plaintiff‐Appellant, Court for the Northern District of Indiana,
Fort Wayne Division.
v.
No. 1:14‐CV‐080 JD
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, Jon E. DeGuilio,
Defendant‐Appellee. Judge.
O R D E R
Polly Reed applied for Disability Insurance Benefits in 2011 when she was
50 years old. An administrative law judge concluded that the residual effects of injuries
to Reed’s left leg, sustained in a 2010 motorcycle accident, constituted a severe
impairment. But the ALJ also concluded that Reed was exaggerating the physical
limitations caused by that impairment and that she retained the residual functional
capacity to perform her past relevant work as well as other jobs in the national and
Indiana economies. The Appeals Council denied review, and a district judge upheld the
denial of benefits. On appeal Reed criticizes the ALJ’s assessment of her residual
functional capacity, the adverse credibility finding, and the conclusion that she was not
No. 15‐3314 Page 2
disabled for at least 12 months following the accident. We conclude that substantial
evidence supports the denial of benefits.
Reed and her husband were riding his motorcycle when it was struck by a car in
June 2010. She had skin loss and a large cut around her left knee, and she fractured her
tibia and fibula. Dr. Stephen Wright, an orthopedic surgeon, inserted a rod and several
screws into her leg to treat the tibia fracture. Reed was hospitalized for 12 days and
ordered not to walk. A surgeon removed dead tissue around the area of the cut on her
left leg and applied skin grafts. A week after her release from the hospital, Reed was still
reporting constant, extreme pain in her left leg. Dr. Wright noted that X‐rays of the area
showed that the tibia and fibula fractures were well aligned and the orthopedic
hardware in her tibia was intact and correctly positioned.
In early August 2010, Reed reported to Dr. Wright that she was experiencing
intermittent sharp pain, the severity of which she rated as 5 on a 10‐point scale. On
physical examination she had some limitations in her range of motion when bending her
left knee and pointing her foot down. Dr. Wright prescribed physical therapy to increase
her strength, functional skills, and range of motion. X‐rays of Reed’s lower left leg did
not show any problem with alignment or with the rod and screws.
Reed had appointments in mid‐September 2010 with Dr. Wright and with
Dr. Teresa Smith, her primary‐care physician. Reed complained to Dr. Smith that her left
leg continued to ache and swell, and the doctor observed that she walked slowly and
used a cane. At the appointment with Dr. Wright 12 weeks after her accident, Reed rated
her pain in her left leg as still 5 out of 10 and said that the pain increased with activity
but physical therapy helped. Reed’s left ankle was mildly swollen, and an X‐ray of her
left leg showed signs of bone healing in the left tibia but still a visible fracture line on that
bone. Dr. Wright prescribed Norco (a hydrocodone/acetaminophen combination) for
Reed’s pain.
When Reed returned to Dr. Wright in November, 20 weeks after the accident,
Dr. Wright noted that her pain was improving—now rated at 4 out of 10—and though
Reed described the pain as constant, it was helped by the Norco, which she took
occasionally. The doctor also noted that an X‐ray showed that the fractures in Reed’s
tibia and fibula were healing well. Dr. Wright said that she could return to work “with
regular duties,” and he continued the Norco prescription.
Reed did not return to her manufacturing job, however, and neither did she
obtain other work. Five months later, in April 2011, she returned to Dr. Smith, her
No. 15‐3314 Page 3
primary‐care physician, complaining of pain in her left foot and left ankle, sometimes as
bad as 7 out of 10. She told Dr. Smith that Dr. Wright had ignored these pains and the
swelling in her left ankle, instead focusing exclusively on her fractures. She also told
Dr. Smith that physical therapy had helped some but she had never regained full range
of motion in her left ankle. Dr. Smith noted from her physical exam that Reed’s gait was
unassisted though she had an obvious limp on the left side. The doctor referred Reed to a
podiatrist, Dr. Christopher Bussema.
When Reed consulted Dr. Bussema at the end of April, she explained that her left
ankle ached and that the pain was made worse by standing and walking. Dr. Bussema
noted a limited range of motion in Reed’s left ankle, though X‐rays showed good spacing
and positioning in the joints around the ankle and only a slight deformity from the
fractures. Dr. Bussema recommended custom orthotics and discussed conservative
treatment options, including ice, immobilization, and pain relievers.
Reed returned to Dr. Bussema a week later and reported that her left‐ankle pain
had not abated and that she now was experiencing a burning sensation in the ball of her
left foot. Dr. Bussema obtained another X‐ray, which did not show anything new. He
gave Reed an injection containing an anesthetic and a steroid to decrease the pain and
inflammation, and in early May he supplied her with custom orthotics for her feet.
At the beginning of June 2011, Reed hired counsel and submitted her application
for Disability Insurance Benefits, alleging onset on the date of her accident, June 20, 2010.
Reed asserted that she had been unable to work since the accident because of the
residual effects of her left‐leg injuries, coupled with depression, anxiety, and high blood
pressure. (Other than a passing reference to hypertension in her appellate brief, Reed
does not mention these other conditions on appeal.) She listed employment from before
the accident that included work as a molder, machine operator, and short‐order cook.
After applying for benefits, Reed returned again to Dr. Smith in mid‐June and July,
reportedly because of depression. Dr. Smith noted that she was walking normally, that
her muscle tone was normal, and that she did not show any sign of “abnormal
movements.” The doctor did not record in her progress notes any complaint about pain
in Reed’s left leg, nor did she comment on Reed’s range of motion in her left ankle.
In mid‐July 2011 a state‐agency consulting physician, Dr. Jonathon Sands,
reviewed the medical record and assessed Reed’s residual functional capacity. He
opined that Reed could lift and carry up to 10 pounds frequently and 20 pounds
occasionally. He stated that she could sit, stand, or walk for up to 6 hours each in an
8‐hour workday. Dr. Sands concluded that Reed no longer could climb ladders, ropes, or
No. 15‐3314 Page 4
scaffolds but still could push and pull without restrictions and occasionally climb ramps
and stairs, balance, stoop, kneel, crouch, and crawl. Reed’s application for benefits then
was denied. After she requested reconsideration, another state‐agency physician,
Dr. Mangala Hasanadka, reviewed the record in August 2011 and concurred with
Dr. Sands’s assessment.
Reed’s hearing before the ALJ did not occur until a year later, in September 2012.
During that year, she had only limited contact with her physicians. In November 2011
Reed consulted Dr. Smith about a painful lump on the inside of her left ankle. In her
progress notes Dr. Smith remarked that she had not detected any abnormality other than
the lump. Reed walked normally and had full muscle strength in all of the tested muscle
groups. An X‐ray taken of the left ankle to assess the lump showed only that the tibia
fracture was well healed, the fibula fracture was stable, and the ankle was well aligned,
though with “mild degenerative changes.” And after this appointment Reed did not
mention the lump again.
Reed next returned to Dr. Smith nine months later, in August 2012. Again she
complained that her leg was hurting, though she had not experienced recent trauma.
Dr. Smith observed that her gait was stable without an assistive device, and a review of
her extremities did not reveal any abnormality other than scarring from the past surgery
on her left leg. The doctor’s notes do not comment on Reed’s range of motion in her left
ankle, nor is there any mention of the painful lump that she had reported previously.
During this visit, Reed acknowledged that Dr. Wright, the orthopedic surgeon, had
invited her to follow up at any time but she hadn’t needed to until recently.
A week later Reed did see Dr. Wright. She told him that she had experienced pain
in her lower left leg for a year and that she had been feeling pain in her right forearm and
tingling in her right hand for two months. She also reported a sharp, intermittent pain of
8 or 9 in severity that traveled, though the doctor’s note did not describe where this pain
was located. Dr. Wright detected tenderness and limited range of motion in Reed’s neck
when she leaned her head back or rotated it to the right. But her gait was normal, as was
her range of motion in her right shoulder and right wrist. Reed reported minimal pain
over the site of one of the surgical screws in her left leg and some mild tenderness at the
site of the tibia fracture, but X‐rays confirmed that the screws were still well positioned
and the fractures well healed. Dr. Wright assessed mild osteoarthritis in Reed’s right
shoulder, degenerative disc disease and radiculitis (a pinched nerve) in her neck, pain
from one of the screws in her leg, and tendinitis in her right arm.
No. 15‐3314 Page 5
Two weeks later during her testimony before the ALJ, Reed maintained that it
took a year after the accident to achieve her current level of ability, but she is no longer
improving. Six months after the accident, she had resumed driving and doing household
chores, including cooking daily, washing dishes, vacuuming every other day, and
dusting weekly. Vacuuming, she added, increases the pain in her left knee and her
shoulder. She acknowledged that she had resumed riding as a passenger on her
husband’s motorcycle in the summer of 2011 and sometimes helps him with motorcycle
maintenance tasks. Yet she insisted that she’s unable to sit longer than 15 minutes before
her left leg and left hip start hurting. She then must stand, Reed explained, but cannot do
so for more than 20 minutes because she favors her right leg, which grows tired. And she
cannot walk for more than five minutes without resting, Reed continued, and every day
she uses a cane (though without a prescription). She can navigate stairs but uses a
handrail and takes the steps one at a time. Reed testified that she can lift the weight of a
case of soda with her left hand and a gallon of milk with both hands. She rated her pain
without medication on a typical day to be 4 or 5 on a 10‐point scale but mentioned that
medication makes the pain minimal, about a 1. When asked about her symptoms during
the hearing relating to her right arm and neck, Reed said that the arm was sore and that
the pain had started two months earlier.
Based on Reed’s testimony about the exertion required for her previous jobs, a
vocational expert opined that her work as a short‐order cook, though classified as light
in the Dictionary of Occupational Titles, was medium work as Reed performed it. Her
manufacturing jobs as a molder and machine operator, the VE continued, are classified
as medium work but were light as Reed performed them. Applying the functional
limitations described in Dr. Sands’s assessment, the VE concluded that Reed can perform
the work of a typical short‐order cook but not the cooking job that she held previously.
And she can work as a molder or machine operator as she performed those jobs in the
past but not as they typically are performed. The VE acknowledged that Reed no longer
can perform any of her past jobs if she must have the flexibility to sit or stand at will. But
even so, the VE added, a significant number of light, unskilled jobs fitting this
hypothetical, including information clerk, mail sorter, and order caller, exist in the
national and Indiana economies.
After the hearing Reed supplemented the record with Dr. Wright’s progress note
from her appointment the same day as the hearing. She told Dr. Wright that her
condition had not changed since her last consultation two weeks earlier and that she still
was experiencing sharp and dull pains, which she rated as 8 or 9 on a 10‐point scale and
which occur with activity, but Dr. Wright’s treatment record did not include any details
No. 15‐3314 Page 6
about where Reed had these pains or what activities exacerbated them. Dr. Wright
surmised that the pain Reed reported in her tibia was attributable to the screws, which
could be removed if Reed wanted. Reed also had reported left‐knee pain, and Dr. Wright
administered a cortisone injection. At this appointment Dr. Wright also reviewed with
Reed an MRI of her neck (taken earlier that month). The MRI revealed stenosis (or
narrowing of the spinal column) at two disc locations but no disc herniation. Dr. Wright
suggested that for her back and right shoulder Reed should consult Dr. Alan McGee.
The ALJ denied Reed’s application for benefits four months after the hearing. At
Steps 1 and 2, the ALJ found that Reed had not engaged in substantial gainful activity
since the motorcycle accident and that the residual effects of the injuries to her left tibia,
fibula, and knee constituted severe impairments. The ALJ acknowledged that two
months before the hearing Reed had first sought treatment for neck and right‐arm pain,
but the ALJ concluded that there was little evidence that these issues would last for
12 continuous months, see 20 C.F.R. § 404.1509, or cause more than minimal limitations
to her ability to perform work‐related tasks, see id. § 404.1521(a). At Step 3 the ALJ
concluded that Reed’s impairments did not satisfy a listing for presumptive disability.
At Step 4 the ALJ found that Reed could perform light work as defined in
20 C.F.R. § 404.1567(b), provided that she not climb ladders, ropes, or scaffolds and only
occasionally balance, stoop, kneel, crouch, crawl, or climb ramps and stairs. The ALJ
thought that Reed’s statements about “the intensity, persistence and limiting effects” of
her impairments were “not entirely consistent with or supported by the medical and
other evidence,” in particular Dr. Wright’s treatment note from November 2010 (that
Reed could return to work with regular duties), her doctors’ observations that she
walked normally without a cane, and the opinions of the state‐agency physicians. Given
this assessment of Reed’s residual functional capacity, the ALJ concluded that she was
capable of performing her past work as a molder or a machine operator (at the light
exertional level that she performed those jobs in the past) or as a short‐order cook (as
that job typically is performed). And in the alternative, the ALJ proceeded to Step 5 and
concluded that jobs Reed can perform with her limitations—unskilled, light occupations
with an option to sit or stand at will—exist in substantial numbers in the national and
Indiana economies.
Reed requested review by the Appeals Council and submitted additional records
from treatment occurring after the hearing. At the end of September 2012, Reed was
examined by Dr. McGee concerning pain in her neck, right shoulder, and right arm.
Dr. McGee diagnosed cervical stenosis but noted that Reed had full range of motion in
No. 15‐3314 Page 7
her neck and simply instructed her on stretching and strengthening exercises that she
could do at home. He also prescribed an anti‐inflammatory medication. Then in
October 2012, Reed returned to Dr. Wright concerning the reported pain affecting her
left knee and lower left leg. Dr. Wright observed that she could bend her knee more than
120 degrees. Reed said that she still experienced intermittent, throbbing pain that she
rated as 7 out of 10 but that the injection administered at the last appointment had
completely relieved her pain for a week. Dr. Wright said that he would consider
conducting surgery on the left knee and also removing the screws in her leg if her
symptoms persisted, and he instructed her to follow up as needed. The following year,
in May, Reed returned to Dr. Smith and reported having neck pain that radiates to her
shoulders. Dr. Smith observed that Reed walked normally, she had full muscle strength
in all groups tested, and her inspection and feeling of Reed’s bones, joints, and muscles
was unremarkable. The Appeals Council accepted the records from these additional
appointments into the record. The Appeals Council denied Reed’s request for review,
and the district court upheld the ALJ’s decision.
On appeal Reed’s first argument is that the ALJ failed to include the limiting
effects of her neck and right‐shoulder pain when determining her residual functional
capacity. She points out that limitations from nonsevere impairments must still be
considered in this determination, see 20 C.F.R. § 404.1545(a)(2), and she argues that
despite her neck and shoulder pain not qualifying as severe impairments, the ALJ still
should have included a reaching limitation in her residual functional capacity.
But Reed ignores the ALJ’s detailed discussion of the treatment records from
August and September 2012 that address her complaints of neck and shoulder pain and
the diagnostic findings concerning her neck. And the ALJ then explicitly tied these
conditions to specific exertional limitations, reasoning that Reed’s neck and shoulder
pain would prevent her from lifting or carrying more than 20 pounds but would not rule
out light work, see id. § 404.1567(b). Contrary to Reed’s assertion, the ALJ did not “ignore
entire lines of evidence”; the ALJ simply drew different conclusions from the documents
than Reed would have liked.
Reed next contends that the ALJ placed too much emphasis on her ability to
perform activities of daily living, and as a result impermissibly inferred that she was
capable of full‐time work. As Reed points out, we have criticized such inferences.
See Stark v. Colvin, 813 F.3d 684, 688 (7th Cir. 2016); Moore v. Colvin, 743 F.3d 1118, 1126
(7th Cir. 2014); Roddy v. Astrue, 705 F.3d 631, 639 (7th Cir. 2013). But the ALJ did not
commit this error; although the ALJ summarized Reed’s testimony about her ability to
No. 15‐3314 Page 8
do housework and other tasks, she never inferred from those statements that Reed was
capable of full‐time work. See Loveless v. Colvin, 810 F.3d 502, 508 (7th Cir. 2016) (noting
that ALJ discussed claimant’s performance of activities of daily living but did not equate
it with ability to work). Reed also accuses the ALJ of overlooking the fact that she took
breaks when performing these chores, but the ALJ explicitly noted these details.
Reed also argues that the ALJ ignored her consistent work history in finding some
aspects of her testimony not credible. Although we have said that ALJs should look
favorably on a claimant’s positive work history, see Hill v. Colvin, 807 F.3d 862, 868
(7th Cir. 2015), we’ve also said that “work history is just one factor among many, and it
is not dispositive,” Loveless, 810 F.3d at 508 (noting that other factors provided
substantial support for adverse credibility finding). In this case the ALJ’s credibility
finding rests on a number of inconsistencies undermining Reed’s complaints that her leg
injury prevents her from working. For example, the ALJ pointed out that while Reed
testified that she uses a cane a few times each day, both Dr. Smith and Dr. Wright on
various occasions observed that Reed could walk normally, and Dr. Smith concluded
that she was stable without an assistive device. Dr. Wright cleared Reed to return to
work “with regular duties” by November 2010 and noted that Reed’s remaining pain,
although moderate, was minimized with medication. The ALJ’s credibility assessment
thus is tied to evidence in the record and is not patently wrong, so we will not disturb
that assessment. See id.; Curvin v. Colvin, 778 F.3d 645, 651 (7th Cir. 2015); Pepper v. Colvin,
712 F.3d 351, 367 (7th Cir. 2013).
Finally, Reed argues that even if the ALJ properly concluded that she did not
establish a current or continuing disability, she at least was entitled to a closed period of
benefits. According to Reed, the ALJ did not adequately explain why she did not satisfy
the standard for disability for at least the 12 months following the accident. While it is
true that the ALJ did not separately explain the basis for concluding that Reed was not
disabled for at least the 12 months after the accident, there was no reason to state the
obvious. The ALJ’s discussion of the medical evidence from that period makes evident
her conclusion that Reed’s injuries had healed and ceased to prevent a return to work
long before the one‐year anniversary of the accident. The ALJ rightly emphasized
Dr. Wright’s note clearing Reed to work in November 2010—five months after the
accident—since her pain was managed by medication and an X‐ray confirmed that the
fractures were healing well. The ALJ also observed that Reed had received an
unspecified orthotics device to treat issues she raised in April 2011 concerning her left
foot and left ankle and that when she returned in June 2011 to her primary‐care
physician, Dr. Smith, the doctor’s findings from a musculoskeletal examination were
No. 15‐3314 Page 9
normal. As the months passed after she applied for benefits, Reed seems to have shifted
her focus from the motorcycle accident to unrelated conditions involving her neck and
right arm, and that effort did not strengthen her claim of a closed period of disability.
Because we conclude that substantial evidence supported the ALJ’s denial of
Reed’s application for Disability Insurance Benefits, we affirm the district court’s
judgment upholding that decision.